Oh clicking hell!

A wife whose solicitors accidentally brought her marriage to an end prematurely has failed in her attempt to persuade the Family Court to overturn it.

The solicitors had two clients with very similar names. Divorces now take place on an online court portal. Someone at the law firm intending to apply for the final order ending the marriage for one client accidentally clicked on the wrong client’s name and found to their horror that the wrong client was now divorced.

This no doubt would have then required in a very awkward conversation with the client concerned. The solicitors then applied to the Family Court to set aside the final order on the ground that it was all a horrible mistake.

The Family Court is not usually particularly obsessed about strict compliance with rules, unlike the County Court and High Court. Deadlines are of course supposed to be complied with, but there are rarely any negative consequences resulting from being a bit late with filing of documents, as long as they are not very late. Drafting errors in orders can be amended under something known as the “slip rule”. The Family Court will usually not be too worried about it trivial non-compliances or errors and will just sort them out, as for example, it has done in divorce applications where the parties are wrongly recorded on a divorce application as being in a gay marriage when they are heterosexual, or where the wife is wrongly stated as being the husband. (This has happened in at least two cases that I have acted in, although I should stress that I acted for the respondent in both cases and it was the applicant’s solicitor who made the mistake. In truth it’s easily done by clicking on the wrong drop down option).

On another occasion, when I was acting in what was one of the first dissolutions of a heterosexual civil partnership (possibly even the first?), the Family Court got itself in a right mess with the paperwork; when I applied for a conditional order of dissolution, the court instead sent me a certificate of entitlement to a divorce and then a decree nisi; these were the equivalent documents in a case where a married couple were divorcing ding, but clearly incorrect in a civil partnership dissolution case.

Cock ups of this type happen, despite solicitors’ and the court’s best efforts, and it isn’t usually a big deal.

Not on this occasion though. At a hearing in the matter of Williams v Williams before the President of the Family Division, the court refused to set aside the final order.

It is difficult not to have sympathy for the solicitors here, and in particular for the person responsible who I expect might have been a relatively lowly member of staff who was told to apply for the final order. I can see how easily a busy solicitor or secretary might click on the wrong client where the names are similar.

The very first application for an online divorce that I ever began was for a client who had an extremely similar name to another client in a divorce who instructed me a couple of months later. Obviously I cannot reveal those clients’ names so I am going to call them James Robert Cooper and James Andrew Cooper. Not an unusual surname, albeit not as common as Smith, Jones or (as in this unhappy case) Williams. Throughout my case, (and particularly when I applied for the decree absolute/final order, I was incredibly careful to check that I was working on the right client’s file. Of course, I am a one-man operation and I know the names of all my firm’s clients. A larger firm will have a lot of clients and a lot of employees who may not be aware that the firm was acting for another client with a very similar name.

Applying for a final order (or a decree absolute in divorces commenced before 6 April 2022) is the simplest step in the divorce application. It involves a few clicks of a mouse and it’s done. As long as the conditional order is less than a year old, the final order is usually made within a day or so.

There can be very good reasons to not apply for a final order too early. Good practice is generally to wait until all financial matters have been resolved and the court has made a financial order. The most obvious reason for this relates to pensions. Solicitors will want to protect their clients’ positions as much as possible. Once the final order has been made, if say, the husband then dies, the wife will not be entitled to a widow’s pension or bereavement allowance; this because she is not a widow, she is an ex-wife.

Furthermore, the death of ex-husband means that the ex-wife can no longer pursue her application for a financial remedy order against the ex-husband or his estate. Therefore, amongst other things, the ex-wife cannot seek a pension sharing order against her ex-husband’s pensions.

Where a financial order is made by the court, it is good practice that the applicant should not seek the final order until 28 days after the pension sharing order (which is part of a financial order) has been made. This avoids the danger that the marriage is ended and the ex-husband then dies before the pension sharing order comes into effect 28 days after the pension sharing order has been made; in those circumstances the pension sharing order cannot be enforced and the ex-wife is no longer entitled to receive a widow’s pension or benefits.

The other most obvious reason why the final order should not be made prematurely is in a case whether the family home is registered in, say, the husband’s sole name; the wife has Home Rights in relation to the property, which means she is entitled to occupy it, or if she has vacated voluntarily, she has the right to return to live there with the husband’s consent or if the court orders it. In cases where the wife has vacated, normal practice would be to still register her Home Rights at HM Land Registry as this will serve to prevent the husband from selling it or mortgaging it without her consent.

These Home Rights will come to an end when the final order is made, which could mean that the wife faces being given notice to quit the property by her ex-husband. The solution there is to seek an order that her Home Rights do not end, notwithstanding  the end of the marriage; however, that must happen before the marriage ends, so the only remaining solution is an application for an occupation order under section 35 Family Law Act 1996.

If the ex-wife is no longer living there, but wants to avoid her ex-husband selling or mortgaging the property until finances are sorted out, the solution is then probably to register a restriction at HM Land Registry arguing that she is entitled to a beneficial interest in the property (although that is not in my view a perfect solution if her claim is really a financial remedy claim in matrimonial proceedings, which are not necessarily the same thing) or in an extreme case an injunction restraining the ex-husband from selling or mortgaging.

(For the avoidance of doubt, these scenarios apply equally in a case where the wife dies before the husband; however, they are  probably more likely to affect wives as they are more likely to outlive their husbands, less likely to have as much pension and more likely to live in a home owned in the husband’s sole name).

So, there are good reasons to make sure that the final order is not made too soon. There is far greater awareness of the pension problem above nowadays; at the same time the number of people applying for their own divorce rather than using a solicitor has increased. This runs the risk that an applicant who is not legally represented may not appreciate the importance of delaying the final order and may apply for it before the finances are sorted (which may prejudice their position, and not just their ex’s position).

Section 10(2) Matrimonial Causes Act 1973 provides a way for the respondent in a divorce (or a joint applicant in a joint divorce) to prevent the final order being made. This is strictly speaking an application for the court to consider that party’s financial position after the marriage, but it has the effect of preventing the final order from being made in the meantime. This is not a new type of application; it was always possible under the old divorce law that was in place from 1973 until 2022 (albeit very rare), but only in two years’ separation with consent or five years’ separation cases. However, since the introduction of the no-fault divorce law, it is now possible in all no-fault divorce applications. Before the new law was introduced in April 2022, when I was trained on the new law and procedure, I was confidently told that section 10(2) applications would become commonplace in future. Two years on, I haven’t seen a single one.

So, the ex-wife in this unfortunate case may have good reasons to not want her final order too soon. However, if a negligence claim is in the offing, it should be also asked; what actual loss has she suffered?

Yes, she is at risk of potential loss for the reasons set out above. However, if the ex-husband doesn’t die any time soon or if the family home is joint names, her position is not prejudiced. The reasons why the application to set it aside was pursued at great cost to the solicitors are not clear (I assume they wouldn’t expect their client to pay), nor why they chose to not just shrug it off as an excruciatingly embarrassing mistake and instead keep their fingers crossed that the ex-husband does not die before they sort out the finances.

Of course, the ex-wife may have non-legal reasons why she doesn’t want the final order made too soon. She may have found it emotionally upsetting for it to arrive sooner than expected. However, looking it this from a non-emotional perspective (which solicitors must do, even if their clients understandably may struggle to), she applied for  a divorce to end her marriage and would have stated to the court that the marriage had irretrievably borrowed down (i.e. it cannot be saved) when she did so.

I am not sure how this problem can be avoided in the future, other than perhaps a few more stages to click through on the online portal, including perhaps something very big and loud that says “ARE YOU ABSOLUTELY SURE YOU WANT THE DECREE ABSOLUTE/FINAL ORDER FOR THIS PARTICULAR CLIENT?”

Still, it was a horribly easy mistake to make. There, but for the grace of God, go all of us.

14 April 2024

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